Justice John Paul Stevens' announcement of his retirement this morning has his many admirers at a loss: Liberals are already bemoaning the absence of a true liberal leader at the court—a man who could still manage to "count to five" to forge a majority on the sometimes fractious center-left of the court. Others will miss his careerlong independence. Stevens shunned political and ideological labels to go his own way when it mattered most. Lawyers are praising the justice as a "judge's judge" whose respect for the profession and the legal process is unparalleled at the high court. As he steps down, he also takes with him the only military experience on the court. Most of all, among those who worked with him, he will be missed for his courtly generosity, his quick wit, his facility with a bowtie, and his willingness to always ask first before interrupting counsel at oral argument.
As the tributes are lavished on Stevens this weekend, the whispers about who should replace him will also be everywhere. The question seems to prompt most of us to take a long, hard look in precisely the wrong place: a mirror. Nothing brings out our complicated relationship with identity politics like a high-court vacancy. Instantly, women are clamoring for a third female justice; men contend it's their turn for a guy this round; racial and ethnic minorities seek greater representation; academics demand a thinker of great import; criminal defense lawyers want one of their own. And on it goes.
Not one of them is wrong. With the exception of Ivy-educated federal appellate judges with executive-branch experience, there is no demographic in America that is really well-represented at the court. When check-the-box representation is the only criterion, there is bound to be disappointment with only nine slots. (As commentators never fail to point out, there is no gay, Asian-American, disabled, female, veteran candidate on the near horizon, and if there were, she would be un-confirmable anyhow.)
But if the retirement of Justice Stevens highlights a single value we should demand in a justice, it's got nothing to do with race or gender or even professional background and everything to do with empathy for others.
Yes. That's right. We just said the e-word.
It's been almost a year since President Obama made his ill-fated remark that the quality he was seeking in a replacement for former Justice David Souter was "empathy." For anyone who may have repressed the subsequent unpleasantness, here's a brief recap: 1) Obama repurposed his words from The Audacity of Hope suggesting that empathy means one should "stand in somebody else's shoes and see through their eyes," and then 2) everybody went freakin' crazy.
The resulting media war on empathy, of course, completely twisted the word to mean that Obama wanted a justice who would use the Constitution as a decorative coaster and decide cases based on his or her feelings and the weather. Somewhere in the whole empathy brouhaha, Obama and the Democrats backed away from the e-word. Justice Sotomayor even renounced it at her confirmation hearings. Which may be why Obama failed to use it at all in his comments honoring Stevens' retirement today.
The great 2009 mass retreat from "empathy" was lamentable. Take away all the hyperbole and chest-heaving, and it's patently obvious that the ability to stand in someone else's shoes for a moment makes someone a better judge. If we can't in fact have a court that looks like America, we should seek a court that feels for America.
There may be no sitting justice who better exemplified the difference between diversity and empathy than Justice Stevens. He grew up white, male, heterosexual, Protestant, and wealthy. At no point in time was he a prisoner at Guantanamo Bay or a frightened teenage girl. And yet, over the decades, his rulings and written opinions repeatedly showed us that he could see the world through the eyes of those with very different life experiences from his own. In other words, he tapped his inner "wise Latina woman" when the case called for it, and we are all better for it. Stevens used empathy not to skew or manipulate his jurisprudence, but to consider the effects of his decisions on real people and to accept that the law can look quite different depending on where you're standing. That's part of what made him such a great justice, and it's a quality the president should bear in mind in selecting his replacement.
In the 2000 case of Illinois v. Wardlow, for example, the court had to decide whether the police had reasonable suspicion to stop a young black man solely because he took off at a run at the sight of a police officer. The five-justice majority, led by Chief Justice William Rehnquist, said, of course! Who else but a criminal turns and runs when he sees a cop? In a partial dissent, however, Justice Stevens offered a different vantage point: "Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent but, with or without justification, believes that contact with the police can itself be dangerous." This isn't "aberrant" behavior, Stevens added; this is common sense when you live in a world where every police officer isn't Officer Friendly. Stevens didn't know this because he grew up in the projects. It was enough that he cared to imagine what that life would be like for those who did.
Last year, after acting like a pack of giggling schoolboys during oral argument in Safford v. Redding, the challenge to a strip-search of a 13-year-old girl by school administrators, a majority of justices eventually concluded that the constitutional rights of Savana Redding were violated when she was strip-searched based on a groundless rumor that she had contraband Advil in her bra. Most of the justices, however, excused the school officials from legal liability, saying that they couldn't have known that what they did was unconstitutional. Justice Stevens, by contrast, made it clear even at oral argument that the strip-search was absurd, and also wrote separately from his colleagues, to point out that the school officials should have known better. "It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude," he said. Right—it takes not a constitutional scholar, but an adult with the empathy to understand that stripping a young girl to her underwear isn't the same as sending her to the locker room to change for gym class.
In Boy Scouts v. Dale, the 2000 case in which the court held 5-4 that the Boy Scouts could exclude homosexuals as Scout leaders, Justice Stevens again wrote in dissent. He argued that it is "interaction with real people, rather than mere adherence to traditional ways of thinking about members of unfamiliar classes" that eventually changes stereotypical thinking. His point was that there is a limit to how much a person, even a brilliant person, can learn from his or her own life experience. What's striking about Justice Stevens' empathy is his unusual ability to imagine experiences that are clearly foreign to him; experiences that might strike others, especially of his generation and background, as strange or even frightening. This kind of empathy is worth more than all the demographic and racial diversity many of us seem desperate to bargain for. Let the career of John Paul Stevens stand as a reminder that we need justices who won't just look into the mirror, but instead will turn the mirror around to see who is reflected back.